Richards v. Lavine

• Decision Date: 03 July 1974
• Citation: 357 N.Y.S.2d 982,78 Misc.2d 801
• Parties: Applications of Sandra RICHARDS and Ruth Lyman, for a Judgment pursuant to Article 78 of the Civil Practice Law and Rules, Petitioners, v. Abe LAVINE, as Commissioner of the Department of Social Services of the State of New York, and Carroll A. Smythe, as Commissioner of the Department of Social Services of the County of Broome, Respondents.
• Court: New York Supreme Court

Page 982

357 N.Y.S.2d 982

78 Misc.2d 801

Applications of Sandra RICHARDS and Ruth Lyman, for a Judgment pursuant to Article 78 of the Civil Practice Law and Rules, Petitioners, v. Abe LAVINE, as Commissioner of the Department of Social Services of the State of New York, and Carroll A. Smythe, as Commissioner of the Department of Social Services of the County of Broome, Respondents.

Supreme Court, Broome County.

July 3, 1974.

Mona R. Nedlik, Broome Legal Assistance Corp., Binghamton, and Rene H. Reixach, Jr., Monroe County Legal Assistance Corp., Greater Up-State Law Project, Rochester, for petitioners.

Louis J. Lefkowitz, Atty. Gen., Albany, for respondent Abe Lavine, by Helen S. Coutant, Asst. Atty. Gen., Binghamton, of counsel.

Thomas B. Oakes, Binghamton, for respondent Smythe.

Paul E. Duda, Asst. Welfare Atty., Dept. of Social Services, County of Onondaga, Syracuse, amicus curiae.

DECISION

PAUL J. YESAWICH, Justice.

Pursuant to Article 78 and CPLR § 1005, this application challenges certain policies of respondents which compel a recipient of public assistance under the Aid to Families with Dependent Children Program (AFDC) to turn over to respondents any state and federal income tax refunds they receive or be faced with a reduction of their public assistance grants in an amount equal to the amount of any such refund.

Each petitioner was a recipient of public assistance and also a wage earner for part of 1972. To determine the amount of public assistance each recipient was entitled to respondents necessarily had to estimate the amount of taxes to be withheld from the recipients pay checks. In each instance respondent Smythe calculated the amount of income tax to be withheld on the basis of the petitioner's actual family size.

In calculating petitioner Richard's budget respondent allowed no deductions for federal or state income taxes to be withheld because the applicable tax tables showed that based on the petitioner's family size no sum should be withheld. In calculating petitioner Lyman's budget respondent arrived at her budget as though she were taking two deductions, one for herself and one for her dependent child.

The respective employers of the petitioners withheld from each of the petitioners pay, for income tax purposes, as if each of them had one exemption. Thus each petitioner was actually claiming less exemptions than had been budgeted for by the Broome County Department of Social Services. As a result of this use of a different number of exemptions by these parties petitioners received less income from their employment than respondents had budgeted for. This differential was not included in respondents calculations in arriving at the amount of the recipients public assistance grants.

In 1973 these recipients received income tax refunds. The respondents claimed the whole amount to be a resource which had to be utilized to reduce the amount of the petitioners public assistance grants. Petitioners contend, on behalf of themselves and all others similarly situated, that this policy violates the requirement that the income and resources of a recipient of public assistance be reasonably evaluated, (18 NYCRR § 352.16). In addition, they contend that Federal law does not allow respondents to consider income tax refunds at all.

On December 6, 1973, Administrative letter 73 PWD--200 which, inter alia, sets forth procedures for handling income tax refunds was promulgated. Since this letter corrects only part of the policies questioned here this proceeding is not moot. Furthermore, '. . . there is ample authority that a matter, although settled as between the parties, will not be considered academic when the underlying questions are of general interest, substantial public importance and likely to arise with frequency . . .'. (Matter of Gold v. Lomenzo, 29 N.Y.2d 468 at 475--476,329 N.Y.S.2d 805 at 810, 280 N.E.2d 640, 643; Mtr. of Cisco v. Lavine,72 Misc.2d 1009, 340 N.Y.S.2d 275, mod. upon rearg. 72 Misc.2d 1087, 341 N.Y.S.2d 719).

While the issue of whether petitioners have the right to bring a class action is a troublesome one (See Moore v. Metropolitan Life Ins. Co., 33 N.Y.2d 304, 313, 352 N.Y.S.2d 433, 438, 307 N.E.2d 554, 557), class relief has been afforded in cases where public assistance recipients have contested uniformly applied policies which adversely affected their interests in the same way. (See Young v. Shuart, 67 Misc.2d 689, 325 N.Y.S.2d 113, mod. 39 A.D.2d 724, 331 N.Y.S.2d 962; Martin v. Lavine, 76 Misc.2d 199, 349 N.Y.S.2d 499; Norton v. Lavine, 74 Misc.2d 590, 344 N.Y.S.2d 81; Baumes v. Lavine, 74 Misc.2d 1046, 347 N.Y.S.2d 355, revd. on other grounds, 44 A.D.2d 336, 355 N.Y.S.2d 477; Mtr. of Cisco v. Lavine, supra; Shearer v. Lavine, N.Y.L.J. July 31, 1973, p. 13, col. 1).

The policy of applying income tax refunds to reduce grants is a common wrong remediable by class action. However that part of the petition which seeks reimbursement for all members of the class is directed at curing separate wrongs, committed by similar means to separate persons, and therefore is not properly a part of this class action (Gaynor v. Rockefeller, 15 N.Y.2d 120, 129--130, 256 N.Y.S.2d 584, 590, 204 N.E.2d 627, 631; Kovarsky v. Brooklyn Union Gas Co., 279 N.Y. 304, 18 N.E.2d 287).

Respondents prior policy of recouping a recipient's income tax refund in spite of the fact that part or all of that refund represented money which had not been budgeted as an expense in the year of employment violated 18 NYCRR § 352.16. This policy, which considered money as available when it was not and then attempted to recover the sum when it became available in the form of a tax refund, penalized recipients in both instances. The procedure outlined in Administrative letter 73 PWD--200 remedies this situation.

Petitioners additionally contend that respondents may not consider any income tax refund even...